Your legal right to use deadly force (i.e. shoot someone) varies from state to state. This article gives you some basic guidelines on the legal use of deadly force. What you are about to read is not legal advice. I am not a lawyer. After you finish here, Google “deadly force YOUR STATE HERE” and read your state’s law. If you have any questions or concerns, contact your local NRA chapter. Take a Use of Deadly Force class. Do not call the police. Just as they have no legal obligation to protect you (true story) they have no legal obligation to give you accurate legal advice. OK, so, we begin with another disclaimer . . .
At the end of the proverbial day, if you shoot someone, a number of people will decide whether or not you were legally justified in doing so. The police will decide whether or not to arrest you. A District Attorney/Prosecutor will decide whether or not to charge you with a crime. Should the incident proceed to trial, a judge or jury will decide whether or not you had a legal right to fire your weapon.
In most states, juries use the “reasonable person” standard to determine guilt or innocence. Would a reasonable person in the same circumstances fire their weapon? We’re talking the totality of circumstances here. Considerations include your age, weight, height, sex, physical health and life experience; the bad guy(s) age, height, sex, appearance and actions; the type of threat (weapons?); the reason for the threat (robbery? rape? knockout game?). The exact situation as it unfolded: who, what, when, where and why. Everything. All of it.
Regardless of the reasonable person standard, you should know your state’s rules for the legal use of deadly force. You should have these rules clear in your mind before you pick up your gun. If you know when you can bring our weapon to bear on the bad guy or guys, you will do so with less doubt and more confidence. If you know when you can’t shoot, you’ll keep your powder dry and avoid a whole lot of legal, moral and financial trouble down the line. Maybe . . .
Generally speaking, lethal force is permissible when you or other innocent life face an imminent, credible risk of death or grievous bodily harm, and imminence is imminent. Let’s start at the end of that sentence and work our way to the beginning.
“Imminence is Imminent”
People use the word “imminent” to describe something they think is about to happen. “I could tell the bad guy was about to attack me from the way he looked at me and his racial slurs.” So “the attack was imminent.” Nope. The word “imminent” means something quite specific when it comes to armed self-defense. It means an attack in the process of happening. Hence the codicil “and imminence is imminent.” You weren’t thinking someone was about to attack you. They were in the act of attacking.
Even if it’s a group of previously convicted criminals revving their Harleys and shouting that they’re going to gut you like a fish, even if it’s a blood-soaked knife-wielding maniac waving a knife in the air, you can’t shoot them until they begin their attack.
OK, you can. As I said above, it’s up to the police, prosecutor, judge or jury to decide if your use of lethal force was justified. They may or may not make allowances for your state of mind. Even so, the mental tripwire for the using your firearm should be “I’m being attacked.” You may have the legal right to “stand you ground,” but up to that point, escape and evade are your two best friends.
“Death or grievous bodily harm”
If someone attacks you with a pillow, you are not at risk of death or grievous bodily harm. Unless you’re lying in a bed and they’re using the pillow to try to smother you. If someone pinches you, you are not at risk of death or grievous bodily harm. Unless they’re “pinching” your testicles with a pair of pliers. If someone slaps you, you are not at risk of death or grievous bodily harm. Unless they’re slapping you with brass knuckles.
See how that works? The possibility of suffocation, broken bones, head injuries, stab wounds, gunshot wounds – they all count as grievous bodily harm. Bumps and bruises don’t. It’s simple common sense, really. Unless it isn’t . . .
You, reasonable person that you are, may have had good reason to think you were in danger of death or grievous bodily harm when you fired your weapon, but actually weren’t. Very much. If at all. Or were you? How bad was that fight when you pulled your gun – or how bad was it going to get? (See: use of force continuum.)
What if someone enters your house to rob it but they don’t actually attack you? Is that cause enough to shoot them? What if they’re carrying a gun? What if you warn them to leave and they don’t? What if you don’t want them and lay in wait and then shoot them? It’s a legal grey area or, if you prefer, a minefield.
That said, in most but not all jurisdictions, your home is your castle; invaders are viewed as an inherent lethal threat (hence “the castle doctrine“). When you use your firearm outside the home, things can get awful hinky, legally speaking. For example, some states apply the castle doctrine to your car or place of business. Some don’t.
Either way, this raises an important point: just because you can shoot someone legally doesn’t mean you should. Unless the threat of death or grievous bodily harm is completely clear, you may want to escape, evade or, perhaps, brandish your weapon as a warning.
[Note: some states allow the use of lethal force for other reasons, such as preventing kidnapping, theft or arson. Check your state’s laws.]
“Credible Threat”
If a 10-year-old boy points a pen knife at you from twenty feet away, that’s not a credible threat of death or grievous bodily harm (nor is imminence imminent). If a bad guy steps out of the shadows right in front of you with a kitchen knife aimed at your heart, that is. If someone points a gun at you intending to do you harm (as opposed to, say, sweeping you with their muzzle at a gun range), that’s a credible threat. It all comes down to how likely the threat is to be successful if you don’t stop it by deploying lethal force.
Again, your opinion on the matter is subject to the authorities’ and jury’s opinion under the “reasonable person” standard. Again, they will base their decision on the totality of the circumstances surrounding the defensive gun use. And again, that determination varies according to state law and the local culture. Remember: there are states where you have a so-called “duty to retreat.” (Click here for a list.) These states are likely to have a high standard for what constitutes a credible threat. And imminence. And grievous bodily harm.
“Innocent life”
If you’re minding your own business, you are the innocent party. You are legally allowed to use lethal force to stop an imminent, credible threat of death or grievous bodily harm – provided imminence is imminent, subject to the usual caveats and official second-guessing. Same goes if someone else is minding their own business when they face an imminent, credible threat of death or grievous bodily harm, and imminence is imminent. You are legally allowed to use lethal force to stop the threat against them – subject to the usual caveats and official second-guessing.
While you have an excellent idea of when you’re innocent (e.g., not starting a fight), using your gun to protect “other innocent life” is fraught with danger. Let’s say you see a woman being attacked by two men. The violence is severe and she’s screaming rape. You shoot the attackers to save the victim’s life. Only the “attackers” were undercover police trying to arrest a perp. Good luck with that. By the same token, let’s say you shoot a top ‘N Rob clerk thinking he was a robber (they’d switched places during the robber). That’s not going to go well for you, either.
The best bet is to refrain from using lethal force unless you’ve seen the whole incident from its inception. In fact, I’d like to end this article with a simple warning: shooting a bad guy or guys can create enormous disruption to your life; morally, spiritually, financially, socially and legally. It may not, but it can.
If you face an imminent, credible threat of death or grievous bodily harm and imminence is imminent, chocks away – remembering that some state laws on lethal force impose a duty to retreat. If, however, you can find a way not to use lethal force and avoid injury to yourself or other innocent life, that’s your best option. In any case, know the law on lethal force in your state and do your best to avoid stupid people in stupid places doing stupid things. That is all.
Legal advice: do NOT rely on trite phrases like, “Better to be tried by12 than carried by 6.” You’re just trusting to luck. Even in a pro-gun state like Alabama, that ignorant attitude will likely land you in prison! Get legal training from a lawyer who’s studied and practiced self-defense law. Don’t pay $1,000 for ammo and then turn your nose up at a few hundred bucks worth of legal training. It’ll save you untold thousands in defense fees in the future.
“Officer, I will be happy to assist you with your investigation after I receive counsel from my attorney. Until then I choose to remain silent”
I repeat that phrase about 20 times during my CCP class!
I love that phrase.
I think id just shorten it up by saying, “If My lawyers says I can talk to you, i will”
Or, just send them to Amazon to buy a copy of “The Law of Self Defense”.
http://www.amazon.com/Law-Self-Defense-Indispensable-Citizen/dp/0988867702
Excellent book
+1. He also has developed state-specific web courses, available through his website.
Has he calmed down?
No matter how good the book, you can’t ask it questions. Moreover, the day after you read it the statute it cites can be reinterpreted by that state’s appellate courts. Seek live, local, qualified legal advice that can give you case law as well as the statutes.
As pointed out, it is an excellent book, by a (legal) expert on the subject. I should also suggest that anyone wanting a good analysis of self-defense issues on most of the potential self-defense cases we see in the news can find the author’s commentary on the subject over at the Legal Insurrection blog. Sometimes he thinks that the self-defense claims are probably justified (George Zimmerman, Darren Wilson), and sometimes not, and his views tend most often to be validated by either guilty verdicts, acquittals (Zimmerman), or refusals to indict (Wilson).
No legal thread is complete without advising viewing this clip about talking to the police:
No legal thread is complete without this critique of that video:
BTW, my attorney, who specializes in gun law and self defense, advises the approach in the second video.
Yup, totally agree with both videos, but the 2nd video really is more accurate for a DGU
Andrew Branca again, author of “Law of Self Defense”.
To reconcile the two, as AB does in his video, normally the rule is to not talk to the police. But, that can be catastrophic when it comes to the self-defense use of deadly force. He breaks such a situation into essentially three phases: 911 call; first responders; and investigators. You want to be the one calling 911, getting your side of the situation onto tape first, which can predispose the entire investigation in your favor. And, 911 tapes are almost invariably admissible in court, which means that you can get your basic story into evidence without having to brave taking the stand in your defense. Tell them essentially that you were attacked, were in fear of your life, used lethal force to protect yourself, to send the police and paramedics, and the basic who, when, and where. The basic purpose of talking to first responders is to secure the scene and to preserve exonerating evidence, much of which, including witnesses, tends to spoil quickly. If you were threatened with a knife, then you need them to find the knife, if there were witnesses, you want to point them out, so that your defense team can find them later, etc. Don’t go beyond that. And, when the supervisors, investigators, detectives, etc. show up, shut up, except to invoke your 5th Amdt. rights.
Could you find a photo that doesn’t make my teeth itch… That lady has NO idea how to even hold a gun. sigh
And I had to laugh at the idea of taking a “class” from a lawyer re self defense or using lethal force. Most of them wouldn’t have any idea. Never heard of such classes.
Take a decent self defense class from a reputable private company or even NRA training to start with. Read your state’s actual statutes, and then as much of the case law as you can find, if you really want to dig into it. Knowing the CUSTOMS of your location, and the general attitude of your “law enforcement” people, would be helpful too.
Conflict avoidance, situational awareness and understanding that lethal force is the last resort to save your life, or that of someone near you… these will cover most of the situations most people will ever encounter. Oh, and don’t talk to the police… that is a biggie.
It really isn’t (shouldn’t) be this complicated. The more you need to remember, the less likely you will do so in an emergency.
… and have a lawyer’s number in your cell phone. Preferably a lawyer with experience in self-defense cases, at a minimum an experienced criminal lawyer to assist you in dealing with police interrogations (they prefer to call them interviews) until you can find a self-defense lawyer should things go beyond initial interrogations.
I’m an NRA instructor, certified to teach the NRA Personal Protection in the Home course. Part of that course involves actually bringing in an attorney versed in criminal law to teach the portion on the legal aspects of self defense.
Yes, I’m a certified NRA instructor as well. I have yet to find either a police officer or an attorney who can present that portion of the course well. Maybe the problem is that we don’t have many self defense cases here. They have almost no experience with them, or with the related law. The last deputy who came to present that portion of my class needed to study up on it, seriously, and then asked me a lot of questions.
I don’t have any problem with asking them, or having them in my class. I simply emphasize to students that they need to do their own research and find out for themselves, rather than simply take someone’s word for it because they have a specific job or fancy law degree. Buyer beware…
Our policy is pretty simple: fear, ability, and intent. You must be in legitimate fear of death or serious bodily injury, your assailant must reasonably possess the ability to kill or seriously harm you, and they must have made an overt action that demonstrates intent to cause death or serious harm.
So a 16 year old anorexic is not necessarily a deadly threat to me. Martial arts, weightlifting, age, size, and overall health can be used against you in a court of law. The lack thereof can also be noted. So a deadly threat to a 115 pound female cop is not necessarily the same threat level as someone 70-140 pounds heavier.
Anyways, I agree with the overall intent of the article but figured it could be stated more succinctly. I’m certainly cognizant of these things in a confrontation.
I like that “fear, ability, intent” description. That works for me.
When I did my LEO training we went over justifiable use of force until we were numb and our instructor boiled it all down to this: if you have to think about it, its not the right time to pull the trigger.
LE training in a DGU situation is not relevant. The public is held to a much higher standard than a Cop.. So.. As my Instructor said, ” You sure as hell better be thinking before you squeeze that trigger, or you will have Years to think about it afterwords.
Actually, civilians are held to a LESSER standard than police. A civilian isn’t expected to have batons and pepper spray and tasers and other cops and a radio with them, so they can ‘go lethal sooner’ so to speak.
And PLEASE talk to me (as a cop) to a point. It should be something like, ‘officer, he did this and I felt he was trying to kill me so I shot him to stop him. I’m shaken up right now, can I call my lawyer now?’
Otherwise, I’m stuck with a dead person, shot by the live person, and no one knows ANYTHING else.
I would try to follow Mas Ayoob’s four points:
1. Officer, this man threatened me.
2. I will sign the complaint (if attacker is alive)
3. Evidence is there, witnesses are there
4. I will cooperate fully, as soon as I contact my lawyer
P.S. police are civilians, too
Not sure if I agree about self-defense not being applicable with LEO involved shootings. Darren Wilson was not indicted for killing “Big Mike” Brown at least partially on standard self-defense grounds. The reasonable fear of death or great bodily injury part was taken care of with the video of Brown shoving the clerk, Wilson’s injuries, and Brown’s blood on the inside of Wilson’s Tahoe and Brown’s DNA on Wilson’s gun. The imminent part was taken care of with the retreating pattern of shell casings, and the advancing blood trail.
Obviously though, the police are involved in non-self-defense deaths, and those are often a bit more problematic – like the choking death of Eric Garner a couple weeks later. It is hard to argue excessive use of force with the retreating trail of .40 shell casings in the Wilson/Brown case, and much easier when the officers cannot plausibly claim that they were in imminent reasonable fear of loss of life or great bodily injury.
Do NOT rely on trite phrases like, “Better to be tried by12 than carried by 6.”
If there is a Mandatory Minimum Sentence possible for you — you will not be seeing a jury — most people in prison were tried by 1 DA.
My Dvds are an excellent tool for learning the rules of self defense
Responsible use of lethal force
http://www.armedresponsetraining.com/product-p/arvts004.htm
Shoot no-shoot scenarios
http://www.armedresponsetraining.com/product-p/arvts005.htm
I would just add that you don’t have to shoot someone to bankrupt yourself in legal fees. Just pulling a gun on someone is 2nd degree assault unless you can demonstrate a need for self defense.
Good point. For anyone who is not aware, pointing a firearm at an alleged attacker is deadly force even if you don’t pull the trigger. Thus, all of the same requirements and legal pitfalls that apply to shooting someone apply to pointing a firearm at someone.
Note: I am not a lawyer and my understanding of legal principles that I described above is not legal advice.
Nutz being pinched, with pliers…OMG
Even if it’s a group of previously convicted criminals revving their Harleys and shouting that they’re going to gut you like a fish, even if it’s a blood-soaked knife-wielding maniac waving a knife in the air, you can’t shoot them until they begin their attack.
Huh? This counters every self defense book I’ve ever read, or legal lecture I’ve ever heard (including as part of the NRA personal protection series).
I’ve always heard that when presented with a credible threat, it’s legal to act. For example, if the bad guy is pointing a gun or a knife at the good guy, the good guy doesn’t have to wait for the bad guy to shoot or stab before the good guy fires. Pointing the gun or knife is enough of a threat.
I remember from back when I lived in AZ (man do I miss those gun laws and self defense laws), that there was a law that explicitly stated it was legal to use lethal force to stop someone from committing certain felonies, including threatening an innocent person with a weapon.
Reference Tueller drill.
The threat has to be imminent and reasonable. A knife at 100 yards is likely not imminent, but a gun pointed at you very well may be. Which, as that other poster pointed out, is why the Tueller drill is relevant and important to know.
We are constantly seeing on the news situations where people thought that they had the law on their side, in what they thought were legal uses of deadly force in self-defense, and they end up in prison because they forgot or didn’t understand the fundamentals of that defense.
Ability, Opportunity and Jeopardy.
Does the bad guy have the ABILITY to harm you? Is he armed? Does his size and physical ability pose a deadly threat.
Does the bad guy have the OPPORTUNITY to do harm? Can he hurt you?
Does the bad guy actually place you in JEOPARDY? Does he attack? Does he approach in a threatening manner? Are you in fear for your life?
This is the most common test used in lethal self defenses cases. You must meet all three.
The way I look at it:
If you’re in a position where you can try and figure out if you’re justified, assume that you’re not.
If you NEED to shoot someone, it’s time to do it and worry about 12 later.
I think that part of the subtlety there is that if you have time to consider whether the use of lethal force is justified, you are probably having problems with the imminent requirement. Not always, but sometimes. If you are waiting for someone to cross a magic line (e.g. Tueller drill) before you shoot, then you are more likely ok. But, if the reason that you are thinking about this is whether your can use deadly force where it is not obviously required, such as the guy who enticed the burglar into his garage, then don’t. If you have to set up the situation, then don’t.
Someone PLEASE start proof-reading the headlines of these articles. “When you can shoot someone” makes it sound as though everyone who owns a gun is looking for an excuse to shoot somebody. It makes gun rights advocates look bad and it gives more ammunition (pun not intended but I’ll go with it) to the anti-gun left. It wasn’t more than a few months ago that Guns.com published an article entitled “20 rules for winning gunfights” which was picked up by several anti-gun organizations.
Remember that two of the biggest arguments made by gun control advocates are “Gun zealots are just waiting for that moment when they have an excuse to shoot somebody” and “You’re more likely to hurt yourself or someone else than you are to use your gun in self defense”. “When you can shoot someone” could be worded in many more eloquent ways. How about “Guns for beginners: What justifies the use of lethal force?”. You guys run a great blog. You’re certainly doing much more good than harm to the political atmosphere surrounding guns but don’t forget how many anti-gun liberal Michael Moore’s are dissecting these blogs.
Pretty easy, really. Laws do not matter, never, ever shoot anyone unless you have no choice. Then STFU and seek legal counsel. After that, take what comes, you know you had no choice.
+1….only as a last resort….
Where in all this does the threat of being disarmed (and the possibility of having your weapon turned against you) come into this? In other words, doesn’t a close-proximity war of words between two people, with perhaps a shove, put an armed citizen in danger of getting into a grappling match leading to disarmament? And if so, where’s the death or grievous bodily harm slide in?
+1. Branca’s book and website would be my go to, if I were traveling, especially.
One caveat: in states with complex, confusing, or lacking case decisions in murky areas, you HAVE to dig deeper.
In CA you can do no better than Chuck Michel’s outstanding book, updated as things change:
http://michellawyers.com/practice-areas/firearms-law-group/
P.S. ditto on legal advice on the internet, no matter how well meant…
Much of the commentary about DUOF (deadly use of force) seems to revolve around “reasonable” action. The theme comes up in virtually every pro gun forum. The fallacy seems to be the notion that one can rely on “reasonable” being the make-up of a jury. However, the actual
term (“reasonable”) is not investigated. Perhaps all the POTG believe they are “reasonable”, and everyone else would be similarly “reasonable”. Problem is, the jury of our peers is made-up of non gun owners. These “reasonable” people do not think it is reasonable for any civilian to possess a firearm (period). Furthermore, most of the populace believes you can “reason” with bad behavior and have a good outcome. The “reasonable person” sitting in the jury box knows they could never shoot another human, and they believe no “reasonable” person would want to. In addition, these “reasonable person” jurors impute their mind-set onto the defendant, and will easily conclude the defendant is not “reasonable”. To complicate things more, the jurors believe it is not only possible to “shoot to wound”, they KNOW that if they were shot (a hit anywhere on the body), they would just quit whatever aggressive action they were taking; it is only “reasonable” to think everyone, everywhere would react the same way.
All that said, my unsolicited advice is that if, as and when you absolutely, positively must shoot someone then be aware that you stand a better than even chance of being convicted of a crime. So the choice comes down to “should I risk being hesitant (and maybe die), or should I vote for self-preservation (knowing prison time may ultimately be seen as worse than death). With so much working against me in a DGU, I determined that the first rule of a gunfight is, “don’t be there”; escape and evade. Leave, flee, runaway. Only if you are in the proverbial no-escape corner should you fire your weapon. The advantages all go to the attacker. Be prepared to defend yourself (even using deadly force), but prepare yourself to not “stand your ground”. Last resort really means LAST RESORT !!
The individual I care for is not capable of running, or even walking away from a threat. That means I stand between her and whatever comes. I have only one law at that point, mine.
“Guns for beginners”. Yes! Please make this a regular segment, preferably with its own tab at the top. TTaG is a great website with a great community, but we tend to forget that most people (even quite a few gun owners) lack the knowledge that most of us have. I’ve met more than a few people who actually were a bit intimidated by this website and the community for being so knowledgable. This website, with the kind of content it has, tends to assume that its readers are well-versed in the many subsets that comprise the topic of “firearms”. While most of us are, it could do a lot to attract people new to the gun world by providing a jumping off point for those who lack our wealth of esoteric knowledge.
This is a bad article. Until it wasn’t.
You said, ” If you know when you can bring our weapon to bear…”
Since *my* weapon is, by design, not available to anyone else on this site, perhaps you meant to say, ” If you know when you can bring *your* weapon to bear…”